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Charge Filing

The fact that the government has shut down does not affect statutorily-determined filing periods. Therefore, the EEOC’s notice reminds potential charge-filers of the filing period (300 days in most states, including Minnesota). It then directs the individual to download, complete and submit the EEOC Pre-Charge Inquiry. This must be done by mail or fax to the nearest EEOC office since their electronic portal for document submission is not operative during the shut-down.

Interestingly, the notice states that once the form is submitted and it appears that the filing period will expire within 30 days, someone will contact the individual and make sure that the charge is properly filed despite the shut-down. Thus, it would seem that there is at least one EEOC staffer continuing to work at the various offices to review incoming questionnaires and arrange for charge-filing if the deadline is approaching.

The notice further states that if the filing period is set to expire within 30 days, the individual can file a charge directly by sending EEOC a dated and signed letter stating the following information:

The filer’s name, address and phone number;

The name, address and phone number of the employer, union, or other entity that allegedly discriminated against the individual;

The job action that the individual believes was discriminatory, when it occurred, and which protected classification forms the basis of the allegation; and

A request for the EEOC to take remedial action.

If intake appointments had been previously scheduled, they are being cancelled on a daily basis as each day of the shut-down passes. However, if the filing period for the charge will expire 30 days, the EEOC will proceed with the intake interview.

Charge Processing

The notice states that all charges filed during the shutdown will be sent to the employer and/or other entity named in the charge just as is done during normal EEOC operations. It says nothing, however, about whether the Respondent must observe the required time frame for responding to the charge (typically 30 days). While it seems reasonable to assume that the response period will not been forced during the shut-down, it seems more reasonable not to take anything for granted. Thus, employers are well advised to file those responses in a timely manner.

Remember, though, that the electronic portal is closed during the shut-down so the response should be mailed or faxed to the office issuing the charge (and proof of service should be maintained). Once the shut-down ends, the EEOC might still request that the response be uploaded into the electronic portal but at least your bases will have been covered in the interim.

Investigations and mediations of pending charges are currently on hold and will resume once the shut-down concludes. However, if a party having received a decision wishes to file a request for reconsideration, the notice states that those requests must still be submitted within the required time frame. However, no action will be taken on those requests until the shut-down ends.

Finally, requests for data under the Freedom of Information Act will still be taken via e-mail, fax or US mail but will not be acted upon until the shut-down ends.

Litigation

If EEOC is currently litigating a claim on behalf of an employee, that litigation is suspended unless the court in which the trial is held has declined to provide a continuance.

Bottom Line

For an agency continually beset by backlogs and delays, this isn’t helping.